Summons and their Execution

Summons- What are Summons? How are they served? Mode of their Service

 

What are Summons? Introduction –

A summon is a legal document that is issued by a Court on a person involved in a legal proceeding. When a legal action is taken against a person or when any person is required to appear in the court as a witness in a proceeding, to call upon such person and ensure his presence on the given date of the proceeding, summons are served.

A summon is served when a suit has been initiated by the plaintiff against the defendant, the court directs to issue summons to the defendant as this ensures a fair trail. If the summons are not duly served then no action can be taken against the defendant.

If on serving of the summon and the person against whom it had been issued does not appear in the court then this will be taken as a Contempt of Court and shall be punished accordingly.

The summons is the descendant of the writ of the common law.

Section 27 and Order 5 of the Code of Civil Procedure deals with the service of summons to the defendant and in the Code of Criminal Procedure, from section 61 to 69 deals with the topic of summons.

Below is the content relating to summons under CrPc.

  • How should be the form of Summons- Section 61 –

Every summons issued by a court under this Code shall be in writing, in duplicate, signed by the presiding officer of such court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the court.

  • Mode of Service of Summons – Section 62-

 

(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the court issuing it or other public servant.

(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.

(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefore on the back of the other duplicate.

Service of Summons on Corporate Bodies – Section 63 –

 

Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed, to have been effected when the letter would arrive in ordinary course of post.

Explanation:- In this section “corporation” means an incorporated company or other body corporate and includes a society registered under the Societies Registration Act.1860

          Service of summons when person serving cannot be found -Section 64 –

Where the person summoned cannot, by the exercise of due diligence be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefore on the back of the other duplicate.

Explanation :- A servant is not a member of the family within the meaning of this section.

Procedure when service cannot be effected as before provided – Section 65 –

If service cannot by the exercise of due diligence be effected as provided in section 62, section 63 or section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides, and thereupon the court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.

  1. Service of Summons on a Government servant – Section 66 –

 

(1) Where the person summoned is in the active service of the Government, the court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed: and such head shall thereupon cause the summons to be served in the manner provided by section 62, and shall return it to the court under his signature with the endorsement required by that section.

(2) Such signature shall be evidence of due service.

 Service of summons outside local limits – Section 67 –

When a court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served.

Proof of service in such cases and when serving officer not present- Section – 68 –

(1) When a Summons issued by a court is served outside its local jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in the manner provided by section 62, or section 64) by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved.

(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the court.

 Service of summons on witness by post – Section 69 –

(1) Notwithstanding anything contained in the preceding section of this Chapter, a court issuing a summons to a witness may in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain.

(2) When an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received, the court issuing the summons may declare that the summons has been duly served.

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